Delhi District Court
State vs . Nadeem Ahmed on 23 January, 2020
IN THE COURT OF
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(WEST DISTT), TIS HAZARI COURTS, DELHI
PRESIDING OFFICER: NEHA, DJS.
IN THE MATTER OF :
State Vs. Nadeem Ahmed
FIR No. 215/2009
PS Patel Nagar
U/s. 326 IPC
Date of Institution of Case : 03.08.2009
Date of reserving of order : 09.12.2019
Date of Judgment : 23.01.2020
JUDGMENT :
a)Date of offence 04.06.2009 b)Offence complained of 326 IPC c)Name of complainant Ms. Rubeda d)Name of accused, Nadeem Ahmed his parentage and residence s/o Sh. Noor Mohd r/o H No. 2563/3 near Choti Chopal, Shadipur Delhi e)Offence charged 326/324 IPC f)Plea of accused Not guilty g)Final order Acquitted Counsels for the Parties: Sh. Piyush Bhadu, Ld. APP for the State. Sh. Ved Prakash, Ld. Counsel for the accused. FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 1 of 13 BRIEF FACTS AND REASONS FOR DECISION:
1. Accused namely Nadeem Ahmed has been chargesheeted for committing offence punishable under Section 326 IPC, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). Brief allegations of the prosecution are that on 04.06.2009, the complainant alongwith her brother and sister were sleeping in the room. At about 4.00 AM, one person came and threw acid upon the complainant, her brother and sister. The complainant noticed that the accused was fleeing away from the staircase after throwing acid upon them. The complainant, her brother and sister had sustained acid burn. Call was made at 100 number. Police arrived and took all injured to RML hospital. Thereafter, the complainant lodged the complaint with the police.
2. On the basis of the complaint, the present FIR was registered. After the completion of the investigation, charge sheet for offence punishable u/s. 326 IPC was filed against accused Nadeem Ahmad. Cognizance of the offence was taken and the accused was summoned. Copy of charge sheet was supplied to the accused.
3. After hearing the parties, charge for the offences punishable u/s. 326/324 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. Prosecution witnesses have been summoned for evidence and 9 prosecution witnesses have been examined to prove the case of the FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 2 of 13 prosecution against the accused.
5. PW1 Ms Zubeda is the sister of the complainant. She has deposed that on 04.06.2009, she alongwith her sisters including Madina and Rubeda and brother Mehandi were sleeping in the room. At about 3.304.00 AM, she felt burning sensation on her back. Her younger sister Rubeda shouted and went out of the room. She also went behind her. While running she saw the accused going down the stairs. They reached the place where water was kept and poured the same. She called the police at 100 number. Police came and took them to RML Hospital. Her statement was recorded by the IO. Police seized cloths, bedsheet, pillow soil etc from their house. Bottles were also recovered from near the staircase of her house. The said articles were seized vide memo Ex. PW1/A to F. The accused was arrested vide memo Ex. PW1/G and personal search memo was also conducted vide memo Ex. PW1/H. She pointed out the place of incident to the IO vide Ex. PW1/I.
6. PW2 Ms Rubeda is the complainant. She has deposed that on 04.06.2009, she alongwith her sisters Madina and Zubeda and brother Mehandi were sleeping. At about 4.00 AM, suddenly she felt burning sensation on her whole body and she immediately rushed outside shouting. She saw accused Nadeem running away from there. She knew the accused as he was the exhusband of her sister Zubeda. She poured water on herself. Her sister Zubeda called the police. Police FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 3 of 13 came and took her to RML hospital where she was treated. Police recorded her statement which is Ex. PW2/A.
7. PW3 Ct Bhur Singh is the police official who accompanied the IO to the spot on receipt of DD NO 5. He took the rukka to the PS and got the FIR registered.
8. PW4 Sh Mehandi is the brother of the complainant. He has deposed that on 04.06.2009 at about 4.00 AM while he was sleeping in the house alongwith his sisters Rubeda, Zubeda and Madina, suddenly his sister Rubeda shouted and went running towards the terrace. He followed her and poured water on her. His sister informed him that the accused had poured acid on her. The accused was married to his sister Zubeda earlier and they got divorced after two years. Thereafter, the accused had threatened his sister on previous occasion due to enmity and had blocked her way on road. The accused had insisted his sister to accompany him but she had refused. The accused had threatened to throw acid on her. His sister called the police. Some drops of acid had fallen on him also. He was taken to RML Hospital where he was medically examined. IO recorded his statement.
9. PW5 Ct Pramod Kumar is the official who had deposited the 6 pulandas with FSL Rohini vide RC Number 26/21/09.
10. PW6 Ct Praveen is the official who had joined the investigation of the case with IO.
FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 4 of 13
11. PW7 Dr Narendra Arya is the doctor who had examined all the injured. He proved the MLC of Rubeda as Ex. PW7/A; MLC of Mehandi as Ex. PW7/B and MLC of Zubeda as Ex. PW7/C.
12. PW8 SI Bharat Singh is the second IO. He had sent exhibits to the FSL and thereafter prepared the chargesheet.
13. PW9 ASI Haripal Singh is the investigating officer. He has deposed that on 04.06.2009 on receipt of DD No. 5, he alongwith Ct Bhur Singh went to the spot where three injured met. He sent the injured to hospital through PCR Van. He recorded statement of complainant Rubeda and got the FIR registered. He arrested accused and conducted his personal search.
14. All witnesses were cross examined. Vide detailed order dated 20.03.2018, PE was closed. The accused was examined under Section 313 Cr.P.C and his statement was recorded separately, wherein he denied all the incriminating evidence against him. He examined two witnesses in his defence.
15. DW1 Smt Rizwana is the wife of the accused. She has deposed that on 04.06.2009 after having dinner, she alongwith her family went to sleep. On 05.06.2009 at about 8.00 AM, some police officials came to her house and took her husband for inquiry regarding theft at the place where he was working. She also followed them and came to know that her husband was implicated in case of throwing FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 5 of 13 acid on Rubeda and Zubeda. On knowing this, she filed a complaint after about two days to the SHO regarding false implication of her husband. The complaint is Ex. DW1/A. Prior to the present case, the injured and complainant used to threaten her husband to implicate in false case. Her husband had been falsely implicated in the present case as he had obtained divorce from Zubeda and thereafter got married to her and she was jealous of her happy married life.
16. DW2 Md Safiq is the brother of the accused. He has deposed that in the year 2009 he alongwith his family were residing at 2573 Choti Chopal Shadipur Main Bazar alongwith family of his brother. There were two rooms facing each other. On 04.06.2009 he had gone to sleep at about 12 Midnight as his brother had come home at 11.30 PM. Due to summer season, his brother/ the accused used to sleep leaving the door open. At about 4.30 AM, he woke up to urinate and he had seen his brother sleeping. He left for his office at about 7.00 AM. The brother of his wife came and informed that his brother has been apprehended by the police. Thereafter, they went to the PS where he met Zubeda and his brother was apprehended by the police.
17. No other witness was examined in defence and DE was closed vide order dated 25.09.2019. Thereafter, the matter was fixed for final arguments.
18. Final arguments were addressed on behalf of Ld. Defence Counsel and Ld. APP for the State.
FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 6 of 13
19. I have considered the submission of Ld. APP for the State and Ld. Defence Counsel and perused the entire material on record.
20. Ld APP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubt. The complainant and other prosecution witnesses have proved that the accused had thrown acid upon the complainant, her sister and her brother while they were sleeping. The doctor has also proved the injuries. It is argued that the prosecution has proved beyond reasonable doubts that the accused had committed the offences with which he has been charged.
21. Per Contra, Ld counsel for accused has argued that there is nothing on record to show that any of the victim had permanent disfiguration of the face or head or that injuries were grievous. One of the eye witness Madina has also not been examined by the prosecution. The testimony of prosecution witnesses shows that the room was 4th room on the second floor and Mahendi was sleeping in the verandha. Mehandi had not seen the accused then how the complainant had seen the accused as it was dark. There are contradictions in the statements of the prosecution witnesses. The seizure memo was prepared by the IO in the absence of the witnesses and he took their signatures in the hospital. It also creates doubt over the alleged seizure. Therefore, it is prayed that benefit of doubt may be given to the accused and he may be acquitted.
22. This Court has considered the submissions of the Ld. Counsels FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 7 of 13 for the parties and perused the material on record.
23. The prosecution has alleged that the accused had thrown acid upon the complainant, her sister and brother while they were sleeping and they all had sustained injuries due to this attack.
24. Perusal of the testimony of the prosecution witnesses would show that the complainant/PW2 Rubeda is the only person who had allegedly seen the accused at the spot. Her brother and sister were also present at the spot but they had not seen the accused at the spot.
25. Record further shows that PW1(sister of the complainant) and PW4 (brother of the complainant) have exaggerated their statements before the court as during their statement to the police, they have not stated that they had seen the accused running away from the spot. They have stated in their statement under section 161 Cr.P.C that they were informed by Rubeda that the accused had thrown acid.
26. In the evidence, PW1 Zubeda has deposed that she had also seen the accused running. However, in the statement to the police, Zubeda has not stated that she had seen the accused running away from the spot. Witness was also confronted with her statement to police. The fact that Zubeda in her statement to police has not stated that she had seen the accused creates doubt over her statement before the Court that she had seen the accused at the spot.
FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 8 of 13
27. The brother namely Mehandi has admitted in his cross examination that he had not seen Nadeem at the spot. The contradictions in the deposition of PW1 and PW4 creates doubt over their statement that they had seen the accused at the spot.
28. Complainant/PW2 Rubeda has deposed that he had seen the accused running from the spot. PW2 Rubeda has deposed in her cross examination, "The room is a small room where three persons can accommodate. Only one single bed(charpai) can be accommodated in the said room. The varanda is situated in front of the room where the brother Mehandi used to sleep and was sleeping there on the date of incident. The stairs are situated at the end of the varanda. After passing through the varanda from my room, the staircase is situated at the right hand side".
29. The sister of the complainant /PW1 Zubeda has deposed, "It is correct that the stairs come after crossing the gallery from my room.
30. PW2 Rubeda has also stated in the cross examination that the lights of the room where they sleep remain off and the distance of the staircase from her room was approximately 10 meters. The brother has also stated that the lights were switched off.
31. There are certain facts which create reasonable doubts on the contention of the prosecution that the accused was seen by PW2 FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 9 of 13 Rubeda on the spot after the incident.
32. It is in the testimonies of the prosecution witnesses that the distance between the room where the victims were sleeping and the stair case where the accused was seen by the victim is about 10 meters. It is also on record that the incident had taken place during night hours at 04.00 a.m. and that there was no light in the room where the victims / complainant and her sister were sleeping.
33. Mehandi, brother of the complainant, has stated that he had not seen the accused on the spot. Admittedly, he was sleeping in the verandah outside the room where the complainant was sleeping. Thus, the person who had thrown acid upon the victims inside the room must have crossed PW4 Mehandi to reach inside to throw Acid. Mehandi had also suffered Acid attack. In the natural course of events, he would have also seen the accused on the spot as he was the victim, who was nearest to the stair case. However, he did not see the accused. No plausible explanation can be given to this fact as to why he could not see the accused while PW2 Rubeda, who was sleeping inside the room, had seen the accused.
34. It is difficult to believe that when there was no light in the room and the stairs were at distance of 10 meters, the complainant could see the accused running from the spot. The brother of the complainant namely Mehandi was sleeping in the gallery and he was also injured due to throwing of acid. The complainant allegedly woke FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 10 of 13 up because of burning sensation and the brother also woke up after burn and hearing shout of his sister. It is difficult to understand as to how the complainant could see the accused while running but the brother, who was present and awake in the gallery itself, could not see the accused.
35. Further, as already discussed, it is shown that PW2 Rubeda had seen the person from a distance of about 10 meters. It does not appear reasonable that a person would identify another person properly from a distance of 10 meters during night hours when such person is running away and the first person had just woken up from sleep due to an act which in itself is sufficient to make her nervous, under fear and shock. Thereafter, it is also possible that the victim had seen some other person running, however, due to previous enmity as stated by the witnesses, she thought that it was the accused who was running.
36. It is also relevant to refer the testimony of PW6 Ct. Praveen who had gone to the spot with the IO. He has deposed that one half filled acid bottle was lying outside the room near the stairs in the gallery and one half cut plastic bottle was lying in the room.
37. The fact that one half filled bottle was kept outside the room shows that the accused could not have kept the bottle properly if he was running. A running person can not keep a bottle properly without spilling the liquid/acid.
FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 11 of 13
38. The complainant, in her police complaint and PW4, in his evidence, have alleged that after the divorce, the accused had threatened PW1 Zubeda. Brother Mehandi has deposed that the accused had threatened Zubeda and stopped her on the road. He has also stated that the accused had threatened to throw acid upon her. In the statement to police, Zubeda and Mehandi have stated that the accused had threatened to throw acid upon Zubeda.
39. The complainant or any of her family member had not lodged any complaint that the accused had threatened to throw acid on Zubeda or stopped her way. The witnesses have also not stated any specific date, month or year or occasion when the accused had threatened Zubeda. The circumstances of the case create doubt over the allegations that any threat was ever extended by the accused.
40. The accused has taken defence that he was sleeping in his house at the time of alleged incident.
41. DW1 Rizwana has deposed that on the night of 04.06.2009, she slept after having dinner. She and her family members including her husband/ accused Nadeem were sleeping in the same house till next day morning.
42. DW2 Mohd. Safiq, brother of the accused has deposed that in the night of 04.06.2009 when he woke up to urinate, he saw his brother sleeping with his family at about 4.30 PM. He has also stated FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 12 of 13 that his brother used to sleep leaving the door of his room open due to summer season.
43. There is nothing to doubt the statement of DW1 that her husband/accused was present with her in the room in the night of 04.06.2009. DW2 has also corroborated the testimony of DW1.
44. It is settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
45. In view of the discussion hereinabove, this Court holds that the prosecution has failed to prove beyond reasonable doubts that accused Nadeem had voluntarily caused grievous injuries to Rubeda by pouring acid on her or simple hurt to Zubeda and Mehandi. Accordingly benefit of doubt is given to the accused and he is acquitted of the charges alleged. Digitally signed NEHA by NEHA Date: 2020.01.23 16:22:12 +0530 NEHA ACMM(W):THC: DELHI Pronounced in the open court today on 23rd of January 2020 FIR No. 215 of 2009 State Vs. Nadeem Ahmed PS Patel Nagar Page No. 13 of 13